Revising our outdated justice system (Part VII) – the mass failure

No matter how much we blame judges and magistrates, lawyers share the biggest chunk of the blame in our faulty justice system.

I had planned to close this judicial transformation series this week, focusing on law practice, on the role of the lawyer as an agent of change in the justice system.

Something highly disruptive happened a few nights ago. I had to change my plans. The 2018 Bar Exam results were released by the Council of Legal Education (CLE), and the dismaying national pass rate was at 18 percent.

So, the ones I wanted to write about did not pass the bar exam. Only 290 out of 1572 Kenya School of Law (KSL) candidates passed the bar exams and qualified to be admitted as advocates. Most of them sat all 9 papers, others sat fewer papers due to personal choice or financial need.

The worst-performing subjects were conveyancing with a 60.5 percent failure rate, followed by commercial transactions with a 55 percent failure rate, and at the bottom was a tie between legal writing and drafting and legal practice management with 48.5 percent failure rate each. The best performing subjects were trial advocacy with a 6 percent failure rate, professional ethics and probate and administration both with a 12.5 percent failure rate.

Some students have asked me if CLE may be capping the numbers to reduce bar admissions and protect the market advantage of already qualified advocates. I am morally certain that this is not so. CLE is not doing that.

In fact, CLE’s examination process has so far been honest, transparent and accountable. The glitch is elsewhere; there is a misalignment between the exam questions set by CLE and the teaching done at KSL.

Misalignment between what is taught and what is examined

First, we can rightfully place part of the blame on many of our universities where law is not properly taught. Teachers are too busy practicing law and they do not dedicate sufficient time to teaching and coaching. I have already written about this in part III of this justice reform series, as well as many times before.

No one should forget that the subjects examined by the bar exam are not part of the university law curriculum, and this is why the second key aspect focuses on KSL teaching.

Universities point fingers at KSL, which defends itself by pointing fingers at universities and CLE. CLE blames KSL and universities yet they all fall under its regulatory powers. The blame game goes on and when the bulls fight the grass suffers…and the grass in 2018 were the 1,282 students who failed the bar exam (82 percent of the candidates). Meanwhile, nobody seems to have the power to address the root cause of this drama.

The misalignment is so dramatic that in the 2018 November bar examinations there were several unfortunate events. In one of them, the students were told that a certain aspect of the curriculum would not be examined, and lo and behold, this was precisely the first and only compulsory question in that subject’s exam. Sadly, this came from one of the best teachers in KSL.

The monopoly drama

The way the bar examination has been conceived is very much like KASNEB (the Kenya Accountants and Secretaries National Examinations Board). The difference is that accountancy training is free and decentralised. The accountancy candidates who sit KASNEB exams can choose where to train; they have a huge array of colleges in all counties, or they may also choose to read at home, on their own.

This makes accountancy colleges painfully aware that their useful existence is measured by the number of students who sit and pass the CPA (Certified Public Accountant) exams, set by KASNEB. Each teacher is also rated by his or her subject performance. If you get a good pass rate in your class then you are a good teacher; if your students fail, you may be dismissed…you are a failed teacher.

KSL has the monopoly of training for the bar exam, and for as long as this remains the case, justly or unjustly, it will bear the blame for such mass failures. It may shift the blame to the universities, but what is examined by the bar exam deals with the practical aspects of law, and this is not necessarily taught at university level; it has always been the preserve of KSL as the only trainer of law practice.

Teaching does not target the examined content

This leads us to the third aspect ¬ the exam setting. Exams are set by third parties hired by the CLE. These examiners assume that the subject matter is properly delivered by KSL, but it is not. CLE and KSL must communicate better. It is also important that KSL properly assesses the content and its delivery and comes up with specific improvements.

KSL will need to scrutinise two key areas - size and content. Size refers to class size. A school of practice needs closer contact with each student, otherwise the lab becomes another theoretical lecture. Content deals with what and how it is being taught.

Are the lecturers dedicated, engaging, competent and knowledgeable? Do they follow the right curriculum? Is KSL giving each lecturer clear directions on the subject matter? Is it in a close working relation with CLE on required delivery? By the time marking of bar exams is done, the students look like clueless idiots and it is too late to salvage the situation. A solution is urgently needed.

Is there a way forward?

I believe that the number of law students at national level has grown in proportion to our economy and the demands of justice. It is no longer possible to teach law practice in only one school.

Competition will push KSL to do whatever is necessary to ensure that teachers deliver the subject as they should and prepare students for tough exams, come rain or shine. But first, we need open channels of communication between KSL and CLE.

A possible and workable solutions is to increase the duration of the LLB course from four to five years, and include the practical subjects within this time. Each university will then be responsible for training its own students for the bar examinations, administered by CLE. This will make universities more accountable to their students. What about KSL? I already mentioned this before. It could have a very bright future in executive, paralegal and specialised legal education.

If we do nothing, the blame game will go on, and the grass will continue suffering.

Dr Luis Franceschi, Dean – Strathmore Law School, [email protected].